Zbranek Custom Homes, Ltd. v. Joe Allbaugh, Diane Allbaugh, and Rutilio Albarran Construction, Inc. D/B/A El Paso Framing
03-14-00131-CV
Tex. App.Jul 7, 2015Background
- A residential fire on Dec. 24, 2008 originated in the void (interstitial) space above an exterior firebox; fire spread into the attic and house.
- Plaintiffs (Allbaughs) claimed Zbranek Custom Homes improperly installed the fireplace, leaving combustible OSB within required clearances and failing to seal joints with heat‑resistant mortar, creating a "false chimney."
- Allbaughs presented cause-and-origin testimony from NFPA 921‑compliant investigators and engineers who: identified the area of origin, ruled out arson/human error, electrical ignition, and a pre‑existing gas leak, and explained how the false chimney could expose OSB to autoignition temperatures.
- Defense argued experts relied on assumptions and that the plaintiffs should have recreated the fireplace (testing) to substantiate ignition via a false chimney; defense also invoked Gharda to challenge expert reliability.
- The jury credited the Allbaughs’ experts; on appeal plaintiffs’ counsel briefed that Gharda is distinguishable and that NFPA 921 methodology and the positive physical evidence supported causation.
Issues
| Issue | Plaintiff's Argument (Allbaughs) | Defendant's Argument (Zbranek) | Held |
|---|---|---|---|
| Admissibility/reliability of expert causation opinion | Experts used NFPA 921 methodology, relied on physical evidence and qualified engineers to reach a scientifically grounded opinion | Experts’ opinions rely on assumptions/incomplete data (invoking Gharda) and thus are unreliable | Court rejects Gharda‑style attack; expert opinions were supported by accepted methodology and positive evidence and therefore admissible |
| Area of origin determination | All experts (plaintiff and defense) agreed the fire began in the void above the firebox based on patterns and photos | Argues plaintiffs assumed origin or failed to prove pre‑fire gap existence | Held that area of origin was properly identified and uncontested among experts |
| Exclusion of alternative causes (electrical, gas, human) | Investigators and specialized engineers independently ruled out electrical arcing/short, an igniting gas leak, and intentional human causes based on tests, lack of arcing, witness accounts, and burn patterns | Defense contended hypotheses (e.g., rare electrical resistance or unseen gas scenario) were not conclusively excluded without reconstruction/testing | Held specialists properly evaluated and excluded plausible alternative causes; defense hypothetical scenarios lacked evidentiary support and did not undermine experts’ opinions |
| Necessity of reconstruction/testing to prove ignition mechanism | NFPA 921 does not require re‑creation; existing manufacturer tests, MSDS, NFPA tables, and published studies (e.g., Babrauskas) provide reliable data showing OSB auto‑ignition at lower temperatures than wood fire temperatures | Plaintiffs should have reconstructed the fireplace to prove that gaps could transfer sufficient heat to ignite OSB | Held testing/reconstruction was not required; reliance on accepted testing, standards, published data, and scene evidence was sufficient |
Key Cases Cited
- Russell v. Whirlpool Corp., 702 F.3d 450 (8th Cir. 2012) (courts may exclude expert testimony that fails to follow accepted investigative standards)
- Schlesinger v. United States, 898 F. Supp. 2d 489 (E.D.N.Y. 2012) (endorsing NFPA 921 as an accepted guideline for fire investigations)
- Whirlpool Corp. v. Camacho, 298 S.W.3d 631 (Tex. 2009) (expert‑opinion admissibility principles)
- Ford Motor Co. v. Aguiniga, 9 S.W.3d 252 (Tex. App.—San Antonio 1999) (an expert need not exclude every hypothetical cause; opponent must show plausible alternatives)